JJ v. KK

182 A.D.3d 743

122 N.Y.S.3d 725

In the Matter of ANTHONY JJ., Respondent,

v.JOANNA KK., Appellant.

(And Another Related Proceeding.)

528115

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 10, 2020

Decided and Entered: April 9, 2020

Cliff Gordon, Monticello, for appellant.

Peter W. Green, Middletown, for respondent.

Marcia Heller, Rock Hill, attorney for the children.

Before: Lynch, J.P., Clark, Devine, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an amended order of the Family Court of Sullivan County (Meddaugh, J.), entered December 12, 2018, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a daughter (born in 2006) and a son (born in 2010). A 2016 Family Court order awarded sole legal custody of the children to the mother and scheduled parenting time to the father on alternate weekends and granted him telephone contact. In December 2017, the father filed a modification petition seeking sole legal custody of the children. Following fact-finding and Lincoln hearings, Family Court found that the mother's persistent conduct in personally making and in prompting mandated reporters to make hotline calls was "sufficiently egregious" to warrant a change in custody and modified the prior order by directing that the father shall be awarded sole legal custody of the children, with the mother receiving parenting time on alternate weekends and telephone contact. The mother appeals.

"[A] parent seeking to modify a prior order of custody ... must first demonstrate that a change in circumstances has occurred since the entry thereof to warrant a review of the children's best interests" ( Matter of Fiacco v. Fiacco, 158 A.D.3d 1011, 1012, 71 N.Y.S.3d 680 [2018] ; see Matter of Charles AA. v. Annie BB., 157 A.D.3d 1037, 1038, 68 N.Y.S.3d 581 [2018] ). "[A]ssuming this threshold requirement is met, the parent then must show that modification of the underlying order is necessary to ensure the child[ren]'s continued best interests" ( Matter of Crystal F. v. Ian G., 145 A.D.3d 1379, 1380, 44 N.Y.S.3d 562 [2016] [internal quotation marks and citations omitted] ).

The father sustained his burden of demonstrating a change in circumstances. The record reflects the mother's pattern of making numerous unfounded neglect and abuse reports against the father to Child Protective Services. During the past two years, at least 19 reports were made either directly by the mother, or at the mother's behest from allegations provided by her to the children's doctors, their therapist, school social workers and other mandated reporters, including the police, Mobile Mental Health, the mother's therapist and her counselor (see Matter of Eck v. Eck, 57 A.D.3d 1243, 1244, 870 N.Y.S.2d 543 [2008] ; Matter of Peet v. Parker, 23 A.D.3d 940, 941, 805 N.Y.S.2d 149 [2005] ); all reports were unfounded. The children and the father were subjected to intrusive investigations, especially the children who, as a result of these reports, were constantly taken out of class to be interviewed by caseworkers. The record reflects ample evidence confirming a change in circumstances based upon the mother's interference with the father's relationship with the children, coupled with her ongoing harassment of the father (see Matter of Crystal F. v. Ian G., 145 A.D.3d at 1381–1382, 44 N.Y.S.3d 562 ).

As the requisite change in circumstances has been established, the inquiry turns to what custodial arrangement is in the children's best interests.¹ Factors considered in making this determination are "maintaining stability for the child[ren], the respective home environments, length of the current custody arrangement, each parent's relative fitness and past parenting performance, and each parent's willingness to foster a healthy relationship with the other parent" ( Matter of Tracey L. v. Corey M., 151 A.D.3d 1209, 1211, 55 N.Y.S.3d 828 [2017] [internal quotation marks, brackets and citations omitted] ).

The evidence adduced at the fact-finding hearings shows that the father has a stable home environment and that his wife has played, and presumably will continue to play, an active role in the children's lives. The father has a close relationship with the children despite the repeated investigations, is willing to communicate with the mother to provide information related to the children's health and education, is flexible with the children's schedule...